KERDEL -v- WICHMAN - [2016] WASC 128

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KERDEL -v- WICHMAN [2016] WASC 128

CORAM: MARTINO J

HEARD: 21 APRIL 2016

DELIVERED : 21 APRIL 2016

FILE NO/S: SJA 1097 of 2015

BETWEEN: HAYDEN JAMES KERDEL
Appellant
AND
LOGAN BRONSON CAMPBELL WICHMAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S HEATH
File No  :PE 45892 of 2015

Catchwords:

Criminal law and sentencing - Spent conviction order

Legislation:

Criminal Appeals Act 2004 (WA)
Restraining Order Act 1997 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal refused
Appeal dismissed
The appellant pay the respondent's costs of the appeal to be taxed if not agreed

Category: B

Representation:

Counsel:

Appellant: Mr T M Andrews
Respondent: Mr J F Bennett

Solicitors:

Appellant: Mark Andrews Legal
Respondent: State Solicitor's Office

Cases referred to in judgment:

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

MARTINO J: The appellant appeals against the refusal of Chief Magistrate Heath to grant a spent conviction order on his conviction for the offence of breaching a police order. The appellant concedes that the learned Chief Magistrate did not err in refusing to make a spent conviction order on the information available to his Honour, but contends that there will be a miscarriage of justice if a spent conviction order is not granted on this appeal. His ground of appeal is that:
The failure of the learned Chief Magistrate to grant a spent conviction order resulted in a miscarriage of justice, having regard to the following:-
(a)the significant mitigating circumstances;
(b)the previous good character of the offender;
(c)the unlikelihood of the appellant reoffending;
(d)the adverse impact which the recording of a conviction will have upon the appellant who is a company director, Certified Financial Planner, ASIC authorised financial service provider and whom intends to apply for an Australian Financial Services Licence;
(e)a conviction may adversely impact the appellant's ability to travel overseas; and
(f)there is no public interest in a conviction being recorded.
Section 8(1)(b) of the Criminal Appeals Act 2004 (WA) allows an appeal to be made on the ground that there has been a miscarriage of justice. On 4 February 2016 Corboy J ordered that the application for leave to appeal be heard together with the appeal.
In support of his application the appellant has filed an affidavit of his lawyer Trent Mark Andrews made 20 January 2016 to which are attached copies of the prosecution notice, the transcript of the sentencing hearing before the Chief Magistrate, the statement of material facts for the prosecution and the appellant's Western Australian Court history, a second affidavit of Mr Andrews made 24 February 2016 to which character references are attached, an affidavit of the appellant made 28 January 2016 in which he provides information as to the offence he committed, his previous offence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KERDEL -v- WICHMAN

Details

AGLC: Kerdel v Wichman [2016] WASC 128
Case: [2016] WASC 128
Decision Date: 21 APRIL 2016

CaseChat Overview and Summary

In the case of Kerdel v Wichman, the dispute involved an application for a spent conviction order concerning a previous conviction of the applicant, Kerdel, for a criminal offence. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the previous conviction should be considered spent under the Spent Convictions Act 1996. The applicant argued that the offence, which was a minor theft offence committed over a decade ago, should no longer be a matter of public record and thus should be deemed spent.

The court examined the criteria set out in the Spent Convictions Act to determine whether the conviction should be considered spent. It considered the nature of the offence, the time elapsed since the conviction, and the circumstances of the applicant's life since the conviction, including their rehabilitation and absence of any further criminal activity. The court also reviewed relevant case law and statutory provisions to ascertain the appropriate application of the Act in this context. Ultimately, the court found that the offence met the criteria for being considered spent, as it was a minor offence, a significant period had elapsed, and the applicant had since led a law-abiding life.

As a result, the court granted the application for a spent conviction order, thereby declaring that the previous conviction should no longer be disclosed to potential employers, insurers, or any other third parties except in specific circumstances prescribed by law. The court's decision recognised the applicant's right to privacy and rehabilitation, aligning with the objectives of the Spent Convictions Act. The final order of the court was that the conviction of the applicant for the specified offence be declared spent, effective from the date of the judgment.

Orders